Published on Lawyers.com and the Epoch Times on March 10, 2017
Q & A.
How Long is the Process to Get My Husband Legalized?
We have one year of marriage and have a son. We have known each other since 2009. My husband has a clean record and no criminal background. Also has been here in the U.S since 2007. He did not enter with visa.
Mr. Lee answers:
The answer depends upon your status. If you have no status, your husband may have to wait until Congress passes a legalization act. If you are a US citizen or permanent resident, you may be able to take advantage of the Administration's I-601A program under which you would file an I-130 petition for alien relative, have that approved, and then submit an I-601A application for a waiver of illegal presence during the time that he is still here in the US. That application is based upon establishing extreme hardship to you if the waiver is not granted. The waiver would be adjudicated during the time that your husband is here, and dependent upon the results, he would then decide whether to continue his immigration. Assuming that it is, he could then consular process for an immigrant visa interviewing overseas at the American Embassy or Consulate in his home country. As you say that your husband has a clean record, no criminal background, and did not enter with a visa, his interview would be like any other immigrant visa interview since the I-601A waiver would excuse his illegal presence in the US. Kindly note two other things –The viability of the program may depend upon whether it will be targeted by Mr. Trump and if so, whether he will be able to muster enough votes from Congress to end the program. Second is that the I-601A waiver only excuses illegal presence and not any other grounds of inadmissibility such as drug addiction, chronic alcoholism, membership in the Communist Party or terrorist organization, etc.
Will I Lose my Green Card If I File a Tax Return That Shows All My Income Is Earned in Another Country?
I am a legal resident living abroad. I have been a legal resident for 5 years but have never filed a tax return. What are my chances of losing my GC if I start filing one now?
Mr. Lee answers:
I believe that you are confusing the payment of taxes with maintenance of your green card. DHS knows how long you have been out of the country through its record-keeping of your record of travels and through your passport. Stays outside the US for extended periods of time may subject you to loss of the green card regardless of whether you file US taxes or not. As a US permanent resident, you are obligated to file taxes on your worldwide income. In my opinion, the most damaging aspect of filing taxes immigration wise would be to claim a foreign income exemption as you would be stating on the tax return that you consider yourself a nonresident of this country.
Can My Expired H1-B Visa Be Reinstated?
I worked in US from Jan 2009 to Jan 2013 and came back to India for Masters. My Visa expired on Oct 2013. Now since I did not utilized my VISA fully, is there a way to reinstate my VISA, if so how? I heard of cap exempt. Is it applicable here?
Mr. Lee answers:
In your situation, you do appear to be cap exempt if you wish to use the other two years of H-1B eligibility. You have to go through the H-1B process all over again. The only difference is that you would not have to establish eligibility under the H-1B visa lottery and could file at any time that you have the proper situation.